INTRODUCTION - Uber Lawsuit Information

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States District Court For the Northern District of california UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF california DOUGLAS O'CONNOR, et al., Plaintiffs, v. UBER TECHNOLOGIES, INC., et al., Defendants. Case No. 13-cv-03826-EMC ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS SUPPLEMENTAL MOTION FOR class CERTIFICATION Docket No. 357 I. INTRODUCTION Plaintiffs Douglas O Connor, Thomas Colopy Matthew Manahan, and Elie Gurfinkel are current or former drivers who have performed services for Defendant Uber Technologies, Inc. Docket No. 330 (Second Amended Complaint) (SAC).1 Earlier this year, Plaintiffs moved to certify a class of approximately 160,000 other UberBlack, UberX, and UberSUV drivers who have driven for Uber in the state of california at any time since August 16, 2009.

2 Docket No. 276-1. Plaintiffs contend that they and all 160,000 putative class members are Uber s employees, as opposed to its independent contractors, and thus are eligible for various protections codified for employees in the california Labor Code. See SAC at 21. Specifically, Plaintiffs brought claims for: (1) expense reimbursement under california Labor Code section 2802 (hereafter, Expense Reimbursement Claim) and (2) converted tips under california Labor Code section 351 (hereafter, Tips Claim). On September 1, 2015, the Court certified the following class (hereafter, September 1, 1 While O Connor remains a plaintiff in this action, he is no longer seeking to serve as a class representative.)

3 Thus, for purposes of this motion, the Court refers to Colopy, Manahan, and Gurfinkel collectively as Plaintiffs. Case 3:13-cv-03826-EMC Document 395 Filed 12/09/15 Page 1 of 32 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States District Court For the Northern District of california 2015 class ) to pursue the Tips Claim only: All UberBlack, UberX, and UberSUV drivers who have driven for Uber in the state of california at any time since August 16, 2009, and who (1) signed up to drive directly with Uber or an Uber subsidiary under their individual name, and (2) are/were paid by Uber or an Uber subsidiary directly and in their individual name, and (3) did not electronically accept any contract with Uber or one of Uber s subsidiaries which contain the notice and opt-out provisions previously ordered by this Court (including those contracts listed in the Appendix to this Order), unless the driver timely opted-out of that contract s arbitration agreement.

4 Docket No. 342 (Certification Order) at 7. The class as defined excluded all drivers who operated or drove for a distinct third-party transportation company, as well as any drivers who signed Uber s more recent contracts ( , contracts which included the notice and opt-out provisions previously ordered by this Court) unless the driver timely opted-out of the arbitration agreement. Id. at 66-67. The Court permitted Plaintiffs to file supplemental briefing with respect to: (1) certifying a class to pursue a claim for expense reimbursement under california Labor Code section 2802 (hereafter, Expense Reimbursement Claim), and (2) certifying a subclass of drivers who labored for distinct third-party transportation companies. Id.

5 At 66. The parties subsequently filed their briefs on the instant supplemental motion for class certification. Docket No. 359 ( class Certification Supplemental Briefing) (Cert. Supp.); Docket No. 365 ( class Certification Supplemental Briefing Opposition) (Cert. Opp.); Docket No. 370-1 ( class Certification Supplemental Reply) (Cert. Reply). Plaintiffs supplemental motion for class certification came on for hearing before the Court on November 24, 2015. For the reasons explained below, the Court will certify the following subclass of drivers (December 9, 2015 Subclass): All UberBlack, UberX, and UberSUV drivers who have driven for Uber in the state of california at any time since August 16, 2009, and meet all the following requirements: (1) who signed up to drive directly with Uber or an Uber subsidiary under their individual name, and (2) are/were paid by Uber or an Uber subsidiary directly and in their individual name, and (3) electronically accepted any contract with Uber or one of Uber s subsidiaries which contain the Case 3.

6 13-cv-03826-EMC Document 395 Filed 12/09/15 Page 2 of 32 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States District Court For the Northern District of california notice and opt-out provisions previously ordered by this Court, and did not timely opt out of that contract s arbitration Like the September 1, 2015 class , this subclass may pursue the Tips Claim under Federal Rule of Civil Procedure 23 (hereafter, Rule 23). Furthermore, both the September 1, 2015 class and December 9, 2015 Subclass are certified to pursue the Expense Reimbursement Claim for vehicle-related and phone expenses. II. DISCUSSION The Court assumes the reader s familiarity with the procedural and factual background of this litigation.

7 See generally O Connor v. Uber Techs., Inc., 82 F. Supp. 3d 1133 ( Cal. 2015), O Connor v. Uber Techs., Inc., No. 13-cv-3826-EMC, 2014 WL 1760314 ( Cal. may 2, 2014); Mohamed v. Uber Techs., Inc., Case No. 14-5200-EMC, No. 14-5241; 2015 WL 3749716 ( Cal. June 9, 2015); O Connor v. Uber Techs., Inc., No. 13-cv-3826-EMC, 2015 WL 5138097 ( Cal. Sept. 1, 2015). Hence, the Court does not separately recount such details here. Instead, any relevant factual or procedural details are included in the body of this Order as necessary to provide context for the Court s discussion of the merits of Plaintiffs supplemental motion for class certification. First, the Court will discuss the legal standards under Rule 23 that are applicable to Plaintiff s supplemental motion for class certification.

8 Second, the Court will address the composition of the class , including whether Uber s more recent contracts are enforceable on a class -wide basis. Finally, the Court will determine whether Plaintiffs Expense Reimbursement Claim can be pursued by the September 1, 2015 class and the December 9, 2015 Subclass. A. Legal Standard ( class Certification) The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550 (2011) (citation omitted). For that reason, a class representative must be part of the class and possess the same interest and suffer the same injury as [her fellow] class members. Id. at 2 This sub- class is distinct from the September 1, 2015 class , as it only includes drivers who signed the contracts including the Court-ordered notice and opt out provisions and did not opt out of the arbitration agreement.

9 This sub- class also does not include drivers who labored for third-party transportation providers, or drivers who drove under a fictitious or corporate name. Case 3:13-cv-03826-EMC Document 395 Filed 12/09/15 Page 3 of 32 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States District Court For the Northern District of california 2550 (citation omitted). Rule 23 thus ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate by requiring affirmative compliance with the requirements of both Rule 23(a) and (b). Id. at 2550. Rule 23(a) permits Plaintiffs to sue as representatives of a class only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class ; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class ; and (4) the representative parties will fairly and adequately protect the interests of the class .

10 Fed. R. Civ. P. 23(a)(1)-(4). If each of these Rule 23(a) requirements is satisfied, the purported class must also satisfy one of the three prongs of Rule 23(b). Here, Plaintiffs again seek certification under Rule 23(b)(3), which provides: (3) the court finds that the question of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other methods for fairly and efficiently adjudicating the controversy. As previously explained in the class Certification order, the only question now before the Court is whether the requirements of Rule 23 are met. See Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013). The burden is on the party seeking class certification [to] affirmatively demonstrate his compliance with the Rule that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.